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2010 DIGILAW 1844 (ALL)

Srawan Kumar Tiwari v. State of U. P. & Ors.

2010-05-28

SHRI KANT TRIPATHI

body2010
Shri Kant Tripathi,J.:- Heard the learned counsel for the petitioner and the learned AGA for the respondent and perused the record. 2. This is a petition under section 482 CrPC against the order dated 6.2.2010 passed by the Additional Chief Judicial Magistrate, Court No.1, Hardoi in regard to the case crime no. 470 of 2009 under section 3/7 of the Essential Commodities Act, police station Baghauli district Hardoi. 3. It appears that the investigating officer filed charge sheet in the case. The learned Magistrate instead of entertaining the charge sheet and passing appropriate order thereon, returned the charge sheet with the direction to the investigating officer to explain as to whether the charge sheet had been submitted without credible evidence, and also as to how and under what circumstances arrest of the accused had not done. 4. The learned counsel for the petitioner submitted that the petitioner's arrest had been stayed by this Court till availability of the credible evidence. If some credible evidence had been collected, it was open to the investigating officer to arrest the petitioner but the investigating officer was not legally bound to arrest him. It was an optional power. Instead of arresting the petitioner he filed a charge sheet. The learned Magistrate should have passed appropriate order either taking the cognizance or refusing to take cognizance or directing for further investigation. He had no power to interfere with the act of the investigating officer by directing him to explain in the aforesaid manner. 5. It is well settled that the investigation is considered pending till the submission of the police report under section 173 CrPC. Whenever any such report is submitted by the investigation officer, the Magistrate may or may not agree with the conclusion of the police. If any charge sheet is filed, the Magistrate has three options; (i) he may take cognizance and issue process to the accused, (ii) he may disagree with the conclusion of the police and refuse to take cognizance and (iii) in appropriate cases he may direct for further investigation. If any charge sheet is filed, the Magistrate has three options; (i) he may take cognizance and issue process to the accused, (ii) he may disagree with the conclusion of the police and refuse to take cognizance and (iii) in appropriate cases he may direct for further investigation. These principles have been propounded by the Apex Court in several cases and some of them are Minu Kumari vs. State of Bihar (2006) 4 SCC 359 : ( AIR 2006 SC 1937 ); Popular Muthiah vs. State (2006) 7 SCC 296 , Abhi Nandan Jha vs. Dinesh Mishra, AIR 1968 SC 117 and Gangadhar Janardan Mhatre vs. State of Maharashtra (2004) 7 SCC 768 : ( AIR 2004 SC 4753 ). 6. So long as the matter is pending for investigation, the Magistrate has no power to interfere with the same and the Magistrate's jurisdiction begins with the submission of the police report to him under section 173 CrPC and not before that. No doubt the police has power to arrest a person accused of committing a cognizable offence and that power has been conferred on the police under section 41 CrPC but it is not always obligatory on the police to arrest the accused as and when any FIR is lodged against him or any investigation in pursuance of the FIR is undertaken or before the charge sheet is filed. In case the police does not consider it proper to arrest the accused on the ground that his arrest is not necessary for conducting the investigation or otherwise, it has power to carry out the investigation and submit the report to the Magistrate under section 173 CrPC without affecting the arrest and in such situation, the Magistrate, on receipt of the police report under section 173 CrPC, if decides to take cognizance of the offence, has to issue a process under section 204 CrPC for procuring the attendance of the accused. The police report submitted by the investigating officer can not be refused to be entertained by the Magistrate for want of arrest of the accused or otherwise. If the police report is filed under section 173 CrPC, the Magistrate has to entertain the same and pass appropriate order thereon as propounded by the Apex Court in the aforesaid decisions. The police report submitted by the investigating officer can not be refused to be entertained by the Magistrate for want of arrest of the accused or otherwise. If the police report is filed under section 173 CrPC, the Magistrate has to entertain the same and pass appropriate order thereon as propounded by the Apex Court in the aforesaid decisions. In view of these circumstances, the refusal by the Magistrate to entertain the charge sheet and issuing a direction to the police to submit explanations in regard to the in action on its part to arrest the petitioner, without taking cognizance of the offence/offences under section 190 CrPC, was not proper. 7. In view of the aforesaid, the impugned order can not be sustained and is liable to be quashed. The investigating officer may, if he so likes, file a charge sheet in the court of Magistrate without arresting the petitioner. In case any charge sheet is filed, the same may be dealt with in accordance with law and an appropriate order thereon may be passed keeping in view the aforesaid pronouncements of the Apex Court. If on pursusal of the charge sheet and other materials, the Magistrate takes cognizance of the offence/offences, he may, in that situation, adopt the recourse provided in section 204 CrPC for issuing appropriate process to the petitioner. 8. With the aforesaid observations, the petition is allowed. The order dated 6.2.2010 passed by the Additional Chief Judicial Magistrate, Court No.1, Hardoi is set aside.